Questions and Answers: Strengthening Security And Protecting Rights

Modernizing the CSIS Act – Authorization Regime

Why would Canadian Security Intelligence Service (CSIS) need to be able to take or direct illegal activities?

To acquire valuable intelligence and fulfill its mandate, CSIS must have close access to individuals who are involved in a range of potentially illegal activities.

Common intelligence collection activities could reach the threshold of broadly worded offences in Canadian law. For example, the very act of providing direction to a human source, operating covertly within a suspected terrorist entity, could potentially engage a number of terrorism offences in the Criminal Code.

What safeguards will be put in place?

The critical priorities of this legislation were to keep Canadians safe, while protecting their rights and freedoms. To that end, the legislation upholds and safeguards the Charter Rights of Canadians.

The Minister of Public Safety will determine the general types of activities which may be undertaken pursuant to the authorization regime. The Minister of Public Safety will also be accountable for who will engage in activities under this regime, and what kinds of activities they may undertake.

The proposed Intelligence Commissioner (IC) would act as an independent third party to provide review of the Minister of Public Safety's decisions.

The proposed National Security and Intelligence Review Agency (NSIRA) would be notified of all activities undertaken under this regime, with a new authority to report activity it deems to be unlawful to the Attorney General of Canada directly.

Are there any limitations to activities that can be authorized?

Yes. The following type of acts or omissions are prohibited, under this legislation:

• The intentional or criminally negligent causing of death or bodily harm to another person
• Acts of torture or cruel, inhuman, or degrading treatment within the meaning of the UN Convention Against Torture;
• The willful attempt to obstruct, pervert or defeat the course of justice;
• Conduct that would violate the sexual integrity of an individual;
• The detention of an individual;
• Causing the loss of or serious damage to property that will endanger the safety of any person.

Why is this regime appropriate?

The authorization regime strikes an appropriate balance of accountability within a regime that accommodates the dynamic nature of intelligence operations.

Accountability is built into the regime at each level: the Minister, Intelligence Commissioner, and Designated employees all bear responsibility.

To benefit from the protections of the regime, reasonable grounds to believe that the act or omission is reasonable and proportionate must exist at the time the act or omission is committed.

Nothing in the draft legislation removes the obligation for CSIS to acquire a warrant where one is required.

Would these amendments help Canadians feel more secure in light of the recent terror attacks in the UK?

The recent tragic events in Manchester and London are a reminder that terrorism can strike anywhere. We continue to monitor the situation very closely and we are working around the clock to ensure the safety of Canadians.

There is a strong and layered approach in Canada to national security, and the Government of Canada will continue to take the necessary steps in response to such incidents.

Canadians can rest assured that CSIS, working with domestic and international partners, vigilantly monitor potential threats and have robust measures in place to address them.

Modernizing the CSIS Act - Datasets

Why is this legislation required?

An October 2016 Federal Court decision, which concerned information collected by CSIS under warrant, has created uncertainty that could affect the Service's collection of datasets.

When it was written, the CSIS Act could not have anticipated the technological changes of the last 30 years. This was acknowledged by the Federal Court, which noted the value of data analytics, but concluded that the CSIS Act did not fully accommodate these programs. As such, legislative amendments must be advanced to modernize the CSIS Act and address these gaps.

Why does CSIS need datasets?

A dataset broadly refers to a set of information that is characterized by a common subject-matter. The proposed legislation applies to datasets which a) contain personal information, as defined in the Privacy Act and b) do not directly and immediately indicate activities that represent a threat to the security of Canada.

The acquisition of large volumes of information for analysis is a technique employed by intelligence agencies across the globe, and is an indispensable tool in support of modern national security investigations.

Data analytics provides CSIS with a capacity to further CSIS' investigations including through the identification of links and significant trends that are otherwise unidentifiable through traditional methods of investigation. The ability to perform analysis of dataset holdings enables CSIS to quickly discount non-threat related information and allocate scarce human investigative resources more efficiently.

The proposed approach would provide a strong framework for CSIS within which to undertake data analytics. This would enable CSIS to focus its investigations in a manner that may be less intrusive than traditional methods of investigation. Traditional subject interviews, human source reporting and physical surveillance requires significantly more time, effort and intrusion into the lives of Canadians.

What safeguards will be put in place?

The proposed framework would include authorization by the Federal Court or the Intelligence Commissioner (CI) for datasets which contain personal information that is not publicly available. The framework would also include review by the National Security and Intelligence Review Agency (NSIRA) including the authority for NSIRA to refer its findings and recommendations to the Federal Court if it is of the view that CSIS has not acted lawfully when querying or exploiting datasets.

There would be additional safeguards regarding the management of datasets, including segregating datasets containing non-publicly available personal information from CSIS' other investigative holdings, as well as strict controls on who can access them, requirements for record keeping and for dataset retention and destruction.

Information sharing would continue to be done in accordance with the requirements of the CSIS Act.

What would occur / be the impact on operations if this element of the legislation is not introduced?

Though CSIS' collection authorities have not changed since they were enacted, the environment in which we operate has evolved considerably.

When it was written, the CSIS Act could not have anticipated the technological changes of the last 30 years. This was acknowledged by the Federal Court, which noted the value of data analytics, but concluded that the CSIS Act did not fully accommodate these programs. As such, legislative amendments must be advanced to modernize the CSIS Act and address these gaps.

A strong framework within which to undertake data analytics would also enable CSIS to focus its investigations in a manner that is less intrusive than traditional methods of investigation. A decision to suspend aspects or the entirety of CSIS' data analytic programme could create significant jeopardy by limiting the Service's ability to identify linkages and leads in national security investigations.

Expanding Witness Protection Measures

Why are changes to the witness protection measures being proposed?

Clarifying that the protective measures for witnesses in sections 486 – 486.5 and 486.7 of the Criminal Code may be ordered for witnesses who testify in hearings for a recognizance with conditions or a peace bond would ensure that such witnesses are able to participate fully and without fear of intimidation or recrimination. Codifying such protections will ensure consistent practice across Canada.

Repealing Investigative Hearing Provisions

Why is the investigative hearing being repealed?

The Anti-terrorism Act of 2001 created the investigative hearing scheme. It expired in March 2007 and was not renewed until July 2013 by the Combating Terrorism Act.

To date, an investigative hearing has never been held, has attracted criticism since its coming into force in 2001, and was not in force between 2007 and 2013 as a result of the expiration of the provisions following a defeat of a motion in the House of Commons to extend the measures.

Improving Efficiency of Terrorist Listings

Why are the changes to terrorist listings being proposed?

Changes to the terrorist listings are proposed in order to ensure that the listing process is more efficient. Reviewing all of the entities on the list at the same time every two years is a very onerous process, and takes on average six to eight months every two years to complete. Ensuring that all de-listing applications are dealt with in a procedurally fair manner requires engagement with the applicant prior to the Minister making a decision. This includes providing the applicant with the opportunity to review and respond to all material that will be put before the Minister when the Minister makes the decision, subject to the need to protect sensitive information. It can be onerous to achieve a de-listing within the 60-day timeframe.

Updating the Youth Criminal Justice Act

Why are changes to the Youth Criminal Justice Act being proposed?

The proposed YCJA amendments seek to clarify that youth justice courts have exclusive jurisdiction to impose recognizances on youth and to eliminate any uncertainty about the applicability of certain provisions to a youth for whom a recognizance order is being sought. It would also be amended to specifically permit access to youth records for the purpose of administering the Passport Program and allowing for this information to be available to the Minister of Public Safety in determining whether to deny or revoke a passport. Finally, a proposed amendment would ensure that all youth facing the possibility of a sentence of 5 years or more would be given the option to be tried by a superior court judge sitting alone or by a judge and jury.

Consulting on Intelligence and Evidence Reforms

Why is the Government consulting on the Canada Evidence Act?

No legislative changes are being proposed regarding the Canada Evidence Act. However, when national security information is involved in legal proceedings, it brings into play issues that are fundamental to justice, rule of law and confidence that Canadians have in not only their system of justice but also the national security agencies mandated to protect Canadians from harm. Consultations will provide valuable direction on a package of legislative reforms that would create a national security system of justice in criminal and civil proceedings that protects Canadians while safeguarding their rights.